In a majority decision on Monday, the 9th US Circuit Court of
Appeals found that US courts could not interfere with foreign court
rulings, unless the foreign power attempted to enforce those
rulings in the US.
The case concerned a civil lawsuit filed against Yahoo! in 2000
by two civil liberties groups - La Ligue Contre le Racisme et
l'Antisemitisme and L'Union des Etudiants Juifs de France. This led
to a landmark ruling in France, with a Paris court ordering Yahoo!
to block internet users in France from accessing its auction sites
selling Nazi memorabilia.
The court reasoned that French law prohibits the display or sale
of anything that incites racism. It was the first time a French
court had issued such an order on a foreign company.
The court also imposed fines of around $13,300 per day upon the
company for non-compliance.
Yahoo! did not appeal the French court's decision in France;
instead, it sought a declaration from a federal court in
California. It claimed that the order to ban French users from
accessing certain auction sites affected the operations of its US
servers, and was therefore unenforceable under the First Amendment
provisions regarding free speech.
Yahoo.fr was not the issue; the portal company already tried to
ensure that its French site complied with French law. But the
French court's concern was that yahoo.com could still be accessed
by French users. Yahoo! did not continue the fight because it
wanted to sell Nazi memorabilia from yahoo.com. Instead, Yahoo!
wanted to fight the point of principle: that a French court should
not control the content of its US site.
In 2001 the federal court accepted Yahoo!'s arguments and ruled
that the French court could not regulate the company's speech on
the internet. The two French groups appealed the decision to the
9th US Circuit Court of Appeals, arguing that the First Amendment
cannot prevent the order from being enforced. They also argued that
Yahoo! had made no attempt to comply with the order before suing in
the US.
A divided Court of Appeals has now reversed the lower court
ruling, ruling that the District Court did not have jurisdiction to
hear the case.
"Yahoo! cannot expect both to benefit from the fact that its
content may be viewed around the world and to be shielded from the
resulting costs", wrote Judge Warren J Ferguson, delivering the
majority opinion.
"Yahoo!," Judge Ferguson continued, "must wait for LICRA and
UEJF to come to the United States to enforce the French judgment
before it is able to raise its First Amendment claim. However, it
was not wrongful for the French organisations to place Yahoo! in
this position."
In effect the Court did not really consider the First Amendment
arguments put forward by Yahoo!, except to say that these could be
raised if the French government ever tried to enforce the French
ruling in the US.
In a dissenting ruling, Judge Melvin Brunetti said that the
Court did have jurisdiction because the two French civil liberties
groups had targeted Yahoo!'s US web site, and subjected the company
to "significant and daily accruing fines".
Yahoo!'s lawyer, Robert Vanderet, told the Associated Press,
"This means that Yahoo would have to wait until they tried to
enforce the French order in the United States to have it declared
unconstitutional".
"It doesn't disturb the court's ruling - it just says that you
have to wait until they come into this country to try to enforce
it," he added.
"Yahoo would like the world to be covered by America's First
Amendment because that would make it easier for Yahoo to do
business around the world," Richard Jones, lawyer for the two
French groups, told the AP. "But that puts Yahoo in the ironic
position of trying to impose American values on the rest of the
world."
